Title: Outsourcing Criminal Prosecution? - The Limits of Criminal Justice Privatization
Abstract: In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice. As prosecutors’ budgets around the nation are being scaled back and enforcement capacities are being narrowed, one conceivable response is the outsourcing of the criminal prosecution function to private lawyers. Indeed, prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States. This Article, prepared for the University of Chicago Legal Forum Symposium on Crime, Criminal Law, and the Recession, argues that the outsourcing trend in criminal justice—seen most prominently in the area of private prisons and policing—should not extend to criminal prosecution because such outsourcing is in tension with the constitutional and positive law norms regulating the public-private distinction. Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers. † Associate Professor, George Washington University Law School. AB, Harvard College; MA, University of London; JD, Harvard Law School. I would like to thank Lisa Fairfax, Steven Schooner, and Joshua Schwartz for reading and commenting upon earlier drafts of this Article. The Article also benefited from conversations and exchanges with Sharon Dolovich, Jennifer Inz, Robert Mikos, Betsy Miller, Scott Neal, and James Stribopoulos. I am grateful to Samuel Gilbert, Emily Crandall Harlan, David Kirsch, Christopher Martin, and Rebecca Rodgers for research assistance, and to Susan Lopez of the American Prosecutors Research Institute of the National District Attorneys Association for access to research materials. All errors are mine. This Article is dedicated to the memory of Professor Jamie Grodsky (1956–2010).
Publication Year: 2010
Publication Date: 2010-01-01
Language: en
Type: article
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Cited By Count: 4
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